Davis v. United States

United States District Court, E.D. Wisconsin

July 21, 2017

CARL LEO DAVIS, Petitioner,v.UNITED STATES OF AMERICA, Respondent.

DECISION AND ORDER

William C. Griesbach, Chief Judge.

On June
17, 2016, Petitioner Carl Leo Davis filed a motion pursuant
to 28 U.S.C. § 2255 challenging his sentence as a career
offender under §§ 4B1.1 and 4B1.2 of the United
States Sentencing Guidelines for a series of armed bank
robberies he committed some twenty-five years earlier. He
argues that the residual clause of the career offender
provision of the Guidelines is unconstitutionally vague in
light of the United States Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015), and
that he would not otherwise qualify as a career offender
under the Guidelines.

This
case was stayed on August 10, 2016 to await the Supreme
Court's decision in Beckles v. United States,
137 S.Ct. 886 (2017). The Supreme Court issued its decision
in Beckles on March 6, 2017. This court subsequently
lifted the stay, and the parties completed briefing in this
matter. For the following reasons, I find that Davis'
§ 2255 motion was not filed within the one-year
limitation period set forth in 28 U.S.C. § 2255(f)(1).
Therefore, his motion will be denied and the case dismissed.

BACKGROUND

In
1991, Davis was charged with six counts of armed bank
robbery, being a felon in possession of a firearm, and using
a firearm to commit a crime of violence in violation of 18
U.S.C. § 924(c). See Case No. 91-cr-253 (E.D.
Wis.). He was 27 years old at the time. Pursuant to his plea
agreement with the government, Davis pled guilty to two
counts of bank robbery by the use of a dangerous weapon and
two counts of use of a firearm to commit a crime of violence.
In exchange, the government agreed to dismiss the remaining
counts. As part of the plea agreement, Davis admitted that he
had two prior convictions under Wisconsin law at the time of
his sentencing-robbery and armed robbery-which made him a
career offender under the United States Sentencing
Guidelines.

According
to the sentencing table in the Guidelines, which were
mandatory at the time of Davis' sentencing, the
appropriate sentence for a career offender charged with bank
robbery by use of a dangerous weapon was 210 to 262 months.
Judge Terence Evans imposed a sentence that was on the low
end of the Guidelines' range, sentencing Davis to 210
months for the bank robbery charges to run concurrently. The
court also sentenced Davis to the mandatory minimum 60 months
for the charge of possession of a firearm to commit a crime
of violence, to run consecutive to the bank robbery charges,
and to the mandatory minimum 240 months for the second charge
of possession of a firearm, to run consecutive to the other
charges. In all, the court imposed a sentence of 510 months,
or 42½ years, of incarceration. Davis did not appeal
his sentence or judgment of conviction. On April 7, 1993,
Davis' bank robbery sentence was reduced by 57% to 120
months, reducing his total sentence to 35 years.

On
April 19, 2013, Davis wrote a letter to the court, indicating
that after 22 years in prison he was a changed man and
requested that the court reduce his sentence. Judge Charles
Clevert, Jr., to whom the case had been reassigned, responded
to Davis' letter, noting that he had no authority to
modify Davis' sentence. On September 23, 2013, Davis
filed a motion pursuant to Federal Rule of Civil Procedure
60(b), arguing that he should not be considered a career
offender in light of the Supreme Court's decision in
Descamps v. United States, 133 S.Ct. 2276 (2013).
The court denied Davis' motion because Rule 60(b) does
not apply in criminal cases. The court explained that the
proper avenue to challenge his sentence is through 28 U.S.C.
§ 2255. Davis responded to the court's order through
a letter, indicating that he would have filed a § 2255
motion to vacate, set aside, or correct his sentence if he
had known that was what he needed to do. The court sent Davis
the district's standard form for filing a § 2255
motion to provide clarity if Davis chose to file such a
motion. Davis never filed a § 2255 motion, but on August
27, 2015, moved for the appointment of counsel to litigate a
claim pursuant to the Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015). His
request was forwarded to the Federal Defender Services of
Wisconsin, Inc., who assisted Davis in filing the current
§ 2255 motion.

ANALYSIS

Habeas
corpus relief under 28 U.S.C. § 2255 is reserved for
extraordinary situations. Brecht v. Abrahamson, 507
U.S. 619, 633-34 (1993). Relief under § 2255 is
“limited to an error of law that is jurisdictional,
constitutional, or constitutes a fundamental defect, which
inherently results in a complete miscarriage of
justice.” Bischel v. United States, 32 F.3d
259, 263 (7th Cir. 1994). The government argues that
Davis' petition should be dismissed for three reasons:
(1) Davis' attack upon a decades-old conviction is
time-barred and does not fall within any of the exceptions to
the one-year statute of limitations; (2) Davis has
procedurally defaulted a collateral attack on the vagueness
of the career-offender guideline by not raising such an
argument in a direct appeal; and (3) Davis' challenge
pursuant to the Supreme Court's holding in
Johnson does not survive the Court's recent
decision in Beckles. For the reasons below, I find
that Davis' motion is barred by the one-year limitation
period in 28 U.S.C. § 2255(f)(1). I therefore decline to
address the government's alternative arguments.

As a
threshold matter, the government asserts that Davis'
§ 2255 motion to vacate, set aside, or correct his
sentence is untimely. Because Davis filed his petition more
than two decades after his sentence and judgment of
conviction became final, his petition would ordinarily be
barred pursuant to § 2255(f)(1)'s one-year
limitation period. Yet, the initial date of the limitation
period may change depending on one of four possible
scenarios. § 2255(f)(1)-(4). Davis relies on §
2255(f)(3) to support his assertion that his motion is not
untimely. Section 2255(f)(3) provides that the one-year
limitation period can also run from “the date on which
the right asserted was initially recognized by the Supreme
Court, if that right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on
collateral review.” § 2255(f)(3). He asserts that
his motion is timely because he filed it within one year of
the Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2551 (2015), which he argues
established a new “right” applicable to his case.

In
Johnson, the petitioner pled guilty to being a felon
in possession of a firearm in violation of 18 U.S.C. §
922(g). Id. at 2556. Prior to sentencing, the
government requested an enhanced sentence in accordance with
the Armed Career Criminal Act (ACCA), arguing that three of
the petitioner's previous offenses-including his unlawful
possession of a short-barreled shotgun in violation of Minn.
Stat. § 609.67-qualified as violent felonies within the
meaning of the Act. Id. Under the sentencing regime
established by the ACCA, “a defendant convicted of
being a felon in possession of a firearm faces more severe
punishment if he has three or more previous convictions for a
‘violent felony.'” Id. at 2555. In
fact, the ACCA dramatically increases the penalties for
simple possession of a firearm by a felon from a maximum term
of ten years to a mandatory minimum term of fifteen years. 18
U.S.C. § 924(e)(1).

The
ACCA defines “violent felony” as

any crime punishable by imprisonment for a term exceeding one
year . . . that-(i) has an element the use, attempted use, or
threatened use of physical force against the person of
another or (ii) is burglary, arson, or extortion, involved
use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
another.

18 U.S.C. &sect; 924(e)(2)(B) (emphasis added). This
italicized portion is known as the ACCA&#39;s residual
clause. Johnson, 135 S.Ct. at 2556. The district
court in Johnson found that the petitioner&#39;s
previous offenses qualified as violent felonies under the
residual clause and sentenced him to a fifteen-year prison
term. Id. In his petition for certiorari, the
petitioner challenged whether Minnesota's offense of
unlawful possession of a short-barreled shotgun is a violent
felony under the ACCA's residual clause. After the
initial oral argument, the Court invited the ...

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